Net neutrality is the principle that data on the internet should be treated equally, moved blindly and impartially, irrespective of content, source, destination, platform or application. The term was coined in 2003 by Tim Wu, Columbia University media law professor.
With the Telecommunications Act of 1996, Congress emphasized the distinction between telecommunications services, regulated by Title II of the Act, and information services, governed by Title I of the Act. Under Title II, telecommunications service providers are subject to common carrier regulations, from price regulation to unbundling requirements. During a Congressional hearing, then-FCC Commissioner Robert McDowell noted that Title II contains over 1,000 requirements for those under its purview. Title I information services, however, are subject to far fewer rules. By 2007, the FCC classified all broadband internet services as Title I information services, freeing the broadband ecosystem from common carrier obligations.
In 2005, the FCC issued a net neutrality policy statement “to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers,” including the following principles:
- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public internet, consumers are entitled to access the lawful internet content of their choice.
- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
- To encourage broadband deployment and preserve and promote the open and interconnected nature of the public internet, consumers are entitled to competition among network providers, application and service providers, and content providers.
The FCC stated that it would take action if any broadband service provider violated one or more of these principles.
In 2007, the FCC issued an order finding that Comcast breached federal policy by restricting access to certain peer-to-peer networks, bidding Comcast to cease certain network management practices. However, the U.S. Court of Appeals D.C. Circuit squashed the FCC’s order three years later after an appeal from Comcast, thwarting the FCC’s ability to enforce its net neutrality principles.
In 2010, the Commission countered with adoption of the Open Internet Order. The order did not reclassify broadband under Title II, but saddled fixed broadband providers with three net neutrality rules and mobile providers with two:
- Transparency – fixed and mobile broadband providers must “publicly disclose accurate information regarding the[ir] network management practices, performance, and commercial terms”;
- Anti-blocking – fixed and mobile broadband providers are prohibited from blocking their customers from accessing or using “lawful content, applications, services, or non-harmful devices, subject to reasonable network management”; and
- Anti-discrimination – fixed broadband providers only are prohibited from unreasonably discriminating in the transmission of lawful network traffic, meaning that discrimination based on the type or source of traffic would be prohibited, while discrimination based on network management, such as to reduce congestion, would be permitted.
To back these rules, the FCC claimed statutory authority via Section 706 of the Telecom Act, which says that the FCC shall encourage the deployment of broadband internet services by promoting competition and undertaking other regulating methods. This time, Verizon contested the order in the D.C. Circuit and, in January 2014, the court struck down the 2010 rules that required broadband providers to treat all internet traffic equally.
In the wake of the D.C. Circuit decision, the FCC voted in 2015 to reclassify broadband under Title II. The vote was 3-2 along party lines, with Republican Commissioners strongly against imposing the rules.
As a result of the reclassification, broadband providers — particularly those in rural areas — reported reduced investment in their networks. In 2018, under Chairman Ajit Pai’s leadership, the FCC rolled back the Title II reclassification and return to the “light-touch” regulations the FCC had always used to oversee the internet and broadband networks. Chairman Pai’s action unleashed a wave of investment in internet infrastructure, enabling our communications network to become the envy of the world.
To avoid political ping-pong on the issue every time the FCC changes hands, Congress should now pass bipartisan legislation that simultaneously establishes broadband as an information service and codifies network neutrality protections. This will provide certainty to investors and innovators.
Widespread agreement exists on continuing the current core network neutrality principles that prevent internet service providers (ISPs) from blocking or throttling consumers’ internet service and also guarantee their ability to connect their choice of devices to the internet. Edge providers rely on these specific net neutrality principles to reach their customers, and ISPs have fully incorporated these principles into their business operations.
IIA Co-Chairman Bruce Mehlman on how to keep the internet open without regulatory overreach.